What happens when someone dies leaving a Will?

Once someone has passed away, there are certain steps required to be undertaken in order to deal with all of their assets, debts and finances. When a deceased leaves a Will, the Executor(s) need to make an application for a Grant of Probate with the Supreme Court.

What is a Grant of Probate and when is it required?

Probate is a legal process that is often required to authenticate a deceased’s persons Will, so that their assets and personal belongings can be dealt with in accordance with their wishes.

Whether or not Probate is required to be applied for often depends on what assets have been left behind by the deceased and also the requirements of the asset holders.

Generally, the requirement for a Grant of Probate depends on the following:

1. The financial value of the deceased’s sole assets. In certain circumstances, if this amount is minimal, a Grant of Probate may not be required;

2. Whether the deceased owned real property either solely or as a Tenant in Common;
3. Whether the deceased’s assets were held jointly or separately; or
4. Whether the deceased had any Superannuation without a binding death nomination.

If a Grant of Probate is required, the Executor(s) named in the Will, will be required to apply for a Grant of Probate. There are a series of steps that the Executor(s) will need to go through to make application for a Grant of Probate. When the Executor/s applies for a Grant of Probate, they will be required to present the Supreme Court with the deceased’s Death Certificate, original Will and a list of all of the deceased’s assets and liabilities. This step in applying for a Grant of Probate can be stressful and has to be done is accordance with the law, which is why Executor(s) usually seek the help from a Lawyer.

What issues can arise when applying for a Grant of Probate?

When applying for a Grant of Probate, there are a number of issues that an Executor(s) should be aware of. There is a chance that the deceased’s Will may be challenged or contested if someone believes the deceased:

5. Did not have capacity to make the Will; or
6. Was facing undue influence when they made the Will.

These issues will cause a delay when applying for Probate. Other issues that may cause delays when applying for Probate includes the following:

7. Problems with the deceased’s Will, such as not being signed correctly or being damaged;
8. An informal Will, a Will listing the deceased’s wishes that do not meet the requirements of a valid Will; or
9. Using a copy of the Will when the original cannot be found.

It is recommended that an Executor(s) applies for Grant of Probate as soon as possible. The longer an Executor(s) waits to apply or is Granted the Probate, the more chances that liabilities will start to arise and will need to be paid. Beneficiaries may also become frustrated when made to wait longer for their share of the final distribution due to delay.

If you require our assistance in applying for Probate, please contact us on (03) 9707 1155. Alternatively, please email us at admin@wslegal.com.au